R v Y, K - [2016] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v Y, K
[2016] SASCFC 18
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
2 March 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
The appellant was convicted of one count of persistent sexual exploitation of a child. That conviction related to offences against the appellant’s stepdaughter, "R". The offending persisted from 1978, when R was about five years old, until 1990 when R was about 17 years old and occurred in the context of extreme and violent punishments. The appellant was sentenced to 14 years and six months imprisonment with a non-parole period of nine years.
Whether the head sentence and non-parole period are manifestly excessive. Whether the Judge erred in failing to have any or adequate regard to certain factors. Whether the Judge erred in failing to have regard to the absence of the need for personal deterrence.
Held per Kelly J (Blue and Nicholson JJ agreeing) (dismissing the appeal):
1. The starting point for the head sentence is within the range identified in R v D (1997) 69 SASR 413 and is not manifestly excessive.
2. The non-parole period is fairly within the range available to the Judge having regard to the need to fix a non-parole period properly proportionate to the gravity of the crime.
3. It was open to the Judge to take the view that the absence of evidence of any subsequent offending was of little significance in assessing the likelihood of reoffending.
Criminal Law (Sentencing) Act 1988 (SA) s 29D, referred to.
R v D (1997) 69 SASR 413; R v MJJ; R v CJN (2013) 117 SASR 81; R v Quinn (2012) 114 SASR 354, discussed.
R v Y, K [2015] SASCFC 94; R v Marien [2011] SASCFC 116; R v T, SA (2014) 120 SASR 145; R v Fleming [2011] SASCFC 75; R v R, AW (2012) 113 SASR 179; R v MacGowan [2012] SASCFC 138; R v Creed (1985) 37 SASR 566, considered.

R v Y, K
[2016] SASCFC 18
Court of Criminal Appeal: Kelly, Blue and Nicholson JJ
KELLY J.
Introduction

This is an appeal against sentence. The appellant was convicted after a trial by Judge alone of one count of persistent sexual exploitation of a child. That conviction related to offences against the appellant’s eldest stepdaughter, to whom I shall refer as “R”. The appellant was also tried and acquitted of a second count of the same offence against the appellant’s other stepdaughter, to whom I shall refer as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Y, K

Details

AGLC: R v Y, K [2016] SASCFC 18
Case: [2016] SASCFC 18
Decision Date: 2 March 2016

CaseChat Overview and Summary

The appellant has appealed against the sentence imposed upon him following his conviction for a series of sexual offences against his stepdaughter. The appellant was sentenced to a head sentence of 14 years and six months imprisonment with a non-parole period of nine years. The appellant contends that the sentence is manifestly excessive, that the sentencing Judge erred in failing to consider certain factors, and that the Judge did not adequately consider the absence of the need for personal deterrence. The issues before the court were whether the sentence was manifestly excessive, whether the sentencing Judge failed to have regard to certain factors, and whether the Judge erred in not considering the absence of the need for personal deterrence.

The court considered the nature and seriousness of the offending and the appellant's criminal history. The court found that the offending was of a very serious nature and that the appellant had a history of violence and abuse towards children. The court also considered the need for general and specific deterrence, as well as the need for denunciation and retribution. The court found that the sentence imposed was not manifestly excessive and that the sentencing Judge had considered all relevant factors. The court further found that the Judge had given adequate consideration to the absence of the need for personal deterrence.

The appeal against sentence was dismissed. The sentence imposed by the primary Judge was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant unsuccessfully appealed against his conviction.[1] On 19 June 2015 the appellant was sentenced to a head sentence of 14 years and six months imprisonment with a non-parole period of nine years. The appellant now appeals against that sentence on three grounds, namely: that the head sentence and non‑parole period are manifestly excessive; that the sentencing Judge erred in failing to have any or adequate regard to certain factors; and that the sentencing Judge erred in failing to have regard to the absence of the need for personal deterrence. Background[1] R v Y, K [2015] SASCFC 94.The offending R’s evidence was that the appellant, who was in a relationship with R’s mother, “DY”, sexually offended against her on numerous occasions from the time when she was about five or six years old until she was about 17 years old. Prior to the appellant and DY’s marriage, DY’s three children from a previous relationship, R, Z, and a son, “S”, lived with the appellant. They continued to live together after the appellant and DY married in 1980. R was born in 1973. Z was born in 1974. S was born in 1975. DY and the appellant had two sons together, J, born in 1982 and P, born in 1992. R gave evidence of numerous instances of sexual offending by the appellant in two different family homes and at other locations. The Judge found, and sentenced the appellant on the basis, that the appellant touched R to the labia and vaginal area while administering corporal punishment, touched and penetrated R’s labia during baths, and also touched R’s vagina with his fingers and penetrated her vagina with his penis. This sexual offending occurred regularly. The Judge also found proved that the appellant touched and penetrated R’s vagina in a car at a drive-in theatre and on an interstate trip. R, Z and S gave evidence that the appellant was a severe disciplinarian and administered extreme and violent punishments. Specifically, R gave evidence of a punishment called ‘Wuthering Heights’, in which she was required to strip naked, bend over and put her hands behind her head, and remain in that position for an hour or longer. If she moved from that position, the appellant struck her with a belt or a stick. R’s evidence was that ‘Wuthering Heights’ always involved the appellant striking her and the appellant inserting a stick or his fingers into her labia. The appellant would also spit on his fingers and rub her bottom and labia, and would kiss R’s bottom to indicate that the punishment was finished. R recalled that the ‘Wuthering Heights’ punishment ceased after she turned 10 years old, but while she was still living in the first of the two homes her family shared with the appellant. Another punishment, ‘the Scarecrow’, started when R was aged 9 or 10 and required the children standing with their arms stretched out horizontally in the air and swivelling their bodies around. At first R was clothed but eventually the appellant told her to take her clothes off for ‘the Scarecrow’ punishment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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